Contesting a Will in Georgia – Undue Influence


There are many ways you can contest, or “caveat” a will.  Undue influence is one of the biggest reasons people contest a will.  What is undue influence, and how can you use it to contest a will in Georgia (or protect your will from undue influence claims)?

http://www.dreamstime.com/-image24492756What is Undue Influence?

In a nutshell, undue influence is a claim that someone was able to use an unfair advantage over a person making a will.  Oftentimes, these people are in a close, or “confidential” relationship, with the person making the will.  These relationships include family members, significant others, bosses or caregivers.  Oftentimes the person making the will is sick, mentally unfit to make good decisions, or completely dependent upon the person unduly influencing them. If a jury finds there was undue influence, the will is void and previous wills may not be effective.  That means proving undue influence can mean the person died without a legal, enforceable will.

 

How to Prove Undue Influence in Georgia

Georgia courts lay out three things a jury must decide when determining whether there has been undue influence on a will.

1. Destruction of “Free Agency”

Everyone wants to make independent decisions about their health and well-being.  Georgia residents are usually able to make such independent decisions until they become sick, dependent upon another, or otherwise too unwell to function by themselves.  Georgia courts require a jury to find the undue influence against the person making the will amount to “fear, force, overpersuasion, or coercion, to the extent of destroying the free agency and will power of the testator”.  The relationship between the influencer and the person making the will, decreased mental or physical ability of the person making the will and the method and degree of persuasion used to influence the creation of a new will are all important factors in contesting a Will in Georgia for undue influence.

2.  “Substituted Will”

 To contest a Will for undue influence, Georgia courts require that the will was “in effect the mental offspring of another.”  Courts are going to be very mindful when the person making the will makes significant changes to a previous will.  Especially important considerations include whether the person “wrote out” previous beneficiaries (especially family members), whether the new will makes gifts in amounts or to people they had not previously included in their will and whether or not the person had discussed revising or making a new will prior to executing the will.  In a nutshell: if the will looks more like what someone else wanted it to be, rather than what the person signing the will really wanted, then you may have grounds for contesting a Will for undue influence in Georgia.

3. “Operative at Time of Execution and Publication”

Even if the two elements above are met, contesting a Will in Georgia for undue influence requires you to prove “the undue influence was operative on the mind of the testator at the time the will was actually executed and published.”  Therefore the closer the time between the undue influence and the will signing, the better the chance a jury will find the testator was thinking about the undue influence when they signed and published the will.

 

Other Considerations

Georgia courts take undue influence seriously, but they also want valid wills to stand up to unhappy beneficiaries.  Georgia courts will pay particular attention to anyone that is not a family member, who is a beneficiary under the new will and who takes an “active part in the planning, preparation, or execution of the will” when considering whether there was undue influence.  Additionally, the “reasonableness or unreasonableness of the disposition of the estate, old age, or disease affecting the strength of mind of the testator” and “confidential relationships” between the influencer and the person making the will are closely scrutinized.

 

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Thank you for reading this article. The information contained in this article is for discussion purposes only. The information contained in this article is not legal advice upon which you should act and simply reading this article does not make you a client of Norris Legal, L.L.C. or any other law firm. Thank you again.